Review of recent case law on general damages in the discrimination jurisdiction

As the three-year anniversary of the Full Federal Court’s landmark decision in Richardson v Oracle Corporation Australia Pty Ltd ¹ approaches, its impact on the way general damages are assessed in sexual harassment and discrimination claims in Queensland has been considered in subsequent decisions. The recent case law indicates that certain awards for non-financial loss in sexual harassment and discrimination cases before the Queensland Civil and Administrative Tribunal (Tribunal) may be set to rise.

In Richardson, the Full Court of the Federal Court held that an award of $18,000 was manifestly inadequate as compensation for the damage suffered by the victim, judged by reference to prevailing community standards. Ms Richardson brought a claim against her employer and a colleague alleging breach of s 28B(2) of the Sex Discrimination Act 1984 (Cth). Justice Buchanan of the Federal Court found that Ms Richardson had been subjected to “a more or less constant barrage of sexual harassment” by the latter over a six month period. As a result, Ms Richardson sustained an adjustment disorder which continued for up to two years, caused her to change jobs and adversely affected her sex life. His Honour awarded Ms Richardson $18,000 in general damages. On appeal, the Full Court of the Federal Court found that the award of $18,000 was properly made by the trial judge based on his findings and the range of awards for discrimination and harassment cases which then applied.

However, the Full Court went on to say that the existing range of awards relied on by the trial judge did not accord with prevailing community standards. Justice Kenny noted that the historically low awards for general damages in cases of sex discrimination and harassment had led academic commentators to conclude that the courts had not accorded much weight or significance to the emotional loss and turmoil occasioned by acts of unlawful discrimination and harassment. Her Honour noted the community’s “deeper appreciation of the experience of hurt and humiliation that victims of sexual harassment experience and the value of loss of enjoyment of life occasioned by mental illness or distress caused by such conduct” as evidenced by a marked increase in awards for similar injuries in other jurisdictional areas. Justice Kenny concluded that previously accepted levels of compensation in discrimination and harassment cases, which were in the range of $12,000 to $20,000, no longer provided reasonable and just compensation. On this basis, Justice Kenny allowed Ms Richardson’s appeal and increased the award of general damages from $18,000 to $100,000.

The reasoning of the Full Court in Richardson has influenced the way damages are assessed in various jurisdictions. By way of example, in the Victorian case of Collins v Smith,² Judge Jenkins referred to Richardson as a significant development in the articulation of the proper approach to the assessment of damages in sexual harassment cases, and emphasised the importance of having regard to the general standards prevailing in the community for loss of enjoyment of life, and the experience of pain and suffering. The complainant was awarded $180,000 for non-financial loss and $20,000 for aggravated damages. Further, the case law since Richardson has recognised that it is of wide application and may not be limited to cases of a similar type or factual matrix.³ Richardson has been considered influential in disability discrimination cases,⁴ victimisation cases ⁵ and sexual orientation cases ⁶ in various jurisdictions. Interestingly, whilst Richardson has been widely considered and resulted in higher awards in some cases, increases have tended to be less dramatic than that in Richardson itself.

However, Richardson has not been followed in all recent cases. For example, in STU v JKL (Qld) Pty Ltd and Ors,⁷ the complainant was sexually assaulted by a colleague outside work hours but in on-site accommodation provided by her employer. The complainant suffered a post-traumatic stress disorder and a depressive illness which continued for a period of nearly four years. The complaint was unable to work during this time. The complainant was awarded $300,000 in compensation, of which $70,000 was for non-financial loss. In assessing damages, the Tribunal was invited to follow Richardson and award general damages in excess of $100,000 but declined to do so. Member Fitzpatrick noted that comparable cases in other jurisdictions had resulted in awards ranging from $100,000 to $380,000; however, she emphasised that s 4(d) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) requires the Tribunal to ensure that like cases are treated alike, in order to achieve the objects of the QCAT Act. Relevantly, s 3(c) provides that an object of the QCAT Act is to promote the quality and consistency of Tribunal decisions. Within this framework, Member Fitzpatrick considered it preferable to take guidance from comparable Queensland cases.

There is also a recent line of authority in which the Tribunal has sought to increase awards for non-financial loss in discrimination cases involving recognised personal injury to the level of awards made in personal injury cases in mainstream Queensland courts under the common law or the Workers’ Compensation and Rehabilitation Act 2003. ⁸

In summary, the more recent case law indicates awards for non-financial loss in discrimination and sexual harassment cases involving a recognisable personal injury may reflect awards made in comparable personal injury cases in mainstream Queensland courts.

The recent case law also indicates that the Tribunal may in some cases follow the approach taken in Richardson in circumstances that are not similar in type. It may even be applied where the complainant does not suffer a serious psychiatric injury.

^{1. [2014] FCAFC 82.}

^{2. [2015] VCAT 1992.}

^{3. Shane Green v State of Queensland and Ors [2017] QCAT.}

^{4. Ingram v QBE Insurance (Australia) Ltd (Human Rights) [2015] VCAT 1936; Huntley v State of NSW [2015] FCCA 1827.}

^{5. Lipman v Commissioner of Police [2015] NSWCATAD 250.}

^{6. Power v Bouvy and Bouvy v Power [2015] TASADT 2. [1] [2016] QCAT 505.}

^{7. [2016] QCAT 505.}

^{8. See Shane Green v State of Queensland and Ors [2017] QCAT.}

^{The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.}